..........Complainant
Versus
Flipkart Internet Private Limited Buildings Alyssa, Begonia & Clover, Embassy Tech Village, Outer Ring Road, Devarabeesanahalli Village Banglore, Karnataka 560103.
….….. Opposite Party
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Present: Complainant in Person.
Sh. A. S. Sohal, Adv. Counsel for OP.
Order
Dr. Harveen Bhardwaj (President)
1. This complaint has been filed by the complainant, wherein alleged that the complainant on 03/10/2021 approached the OP through the OP’s mobile application namely Flipkart, wherein he had placed an order for ‘Iphone 12’, vide Order ID. OD123005671292757000 and the complainant states that the price of the said Product was Rs.54.999/-, which was paid by the complainant through Credit Card. The complainant states that the complainant further states that after placing the order in utter shock the complainant perceived that his Flipkart Account was blocked and he could not track the order and after perceiving the same the complainant contacted the respondent concern wherein the respondent executive confirmed that the account would be unblocked within 1-2 days. Despite of several intimations, the account was not unblocked and that the complainant could not track the order and on 06.10.2021, he received intimation from one of the respondent executives stating that the order has been delivered. The complainant states that the complainant further states that he did not receive any intimation mail or OTP in regards to the delivery of the said product and the complainant repeatedly contacted the respondent concern for the resolution against the said issue, but there was no resolution provided from the respondent end and due to the respondent negligence the complainant is highly harassed during the whole procedure but still no constructive reply was provided to him from anywhere which is highly cheap and due to the respondent aforementioned malafide act and conduct, the complainant got duped the hard-earned money of the complainant which is hindering the complainant in an erroneous way as the complainant has been facing the tremendous agony and due to the same the complainant has not got able to live the life in own accord. The complainant states that being deprived of the proper and facilitated procurement he again and again intimated the respondent by way of the telephonic conversation and by way of electronic mail conversation in order to solve the said issue, however the executive of the respondents have acted like flogging of a dead horse in lieu of providing the proper services to the complainant and in lieu of providing the constructive reply to him till date. The above mentioned dispute clearly states that there was negligence on the respondent and the said respondent company is running an Unfair Trade Practice in order to dupe the hard earned money of the complainant wherein respondents have intentionally provided the de novo dreadful and deceitful service to the complainant and has not provided the proper and facilitated services towards him which has caused agony and stress. The Respondents have miserably failed in providing right and proper service despite the complainant has paid the full amount to the respondent authority and thereby causing deficiency in service and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OP be directed to refund the amount of Rs.54,999/- which is already paid to the OP company. Further, OP be directed to pay a compensation of Rs.15,000/- for causing mental tension and harassment to the complainant and also be directed to pay a litigation expenses.
2. Notice of the complaint was sent to the OP, who filed reply and contested the complaint by taking preliminary objections that the Complainant has suppressed true and material facts from this Commission and trying to mislead this Commission. Hence, the present complaint is not maintainable and liable to be dismissed in limine. It is further averred that the actual facts of the present complaint are that the Complainant had ordered Apple iPhone 12, White 128GB (hereinafter, ‘the Product’) on 03.10.2021 through the online platform of the OP and the same was duly delivered on 06.10.2021 by the independent seller at the address provided by the Complainant himself at the time of placing order. The whole grievance of the complainant pertains to alleged non-delivery of the product Which is completely false as the product has already been delivered to the Complainant at the address provided which is reflecting in the Invoice copy provided by the Complainant. The fact needs to be recorded here is that the product was purchased from the third party seller (Shreyash Retail Private Limited) and the same is clear from the copy of Tax Invoice attached by the complainant himself in the present complaint. The Independent third party seller had sold the product to the complainant and delivered the same through the third party Logistic service Provider. It is further averred that when the complainant raised his grievance with the OP, the same was duly escalated to the seller. However, the seller rejected the dispute raised by the complainant stating that the product has been delivered at the right address as provided by the Complainant and same was also confirmed by the third party logistic service provider. The fact needs to be recoded here that the address for delivery of the product, as provide by the Complainant, is of somewhere in Ahmedabad, Gujarat whereas the Complainant himself is in Jalandhar, Punjab. Thus, evidently the Complainant was not present at the address where the product was delivered and the Complainant cannot deny delivery of the product when he himself was not present at the delivery address. It is further averred that the OP/Flipkart Internet Private Limited is a company engaged, among others, in providing trading/selling facility over the internet through its website www.flipkart.com and mobile application (Mob App) (hereinafter collectively referred to as the "Flipkart Platform"). The OP is an online marketplace e-commerce entity as defined under Consumer Protection Act, 2019 and Consumer Protection (E-Commerce) Rules, 2020. The Flipkart Platform' is electronic marketplace model E-commerce platform which acts as an intermediary to facilitate sale transactions between independent third-party sellers and independent end customers. That the sellers registered on Flipkart Platform are separate entity being controlled and managed by different- unrelated persons/stakeholders and carry no direct or indirect relationship whatsoever with the Flipkart Platform. It is submitted that the business of the OP falls within the definition of an ‘intermediary’ under Section 2 (1) (w) of the Information Technology Act, 2000, which is reproduced hereunder:
“intermediary”, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, webhosting service providers, search engines, online payment sites, online- auction sites, online-market places and cyber cafes,”
It is further averred that the OP No.1 is protected by the provisions of Section-79 of the Information Technology Act, 2000. Moreover, Section 5 (1) of Consumer Protection (E-Commerce) Rules, 2020 also provides for exemption to marketplace e- commerce entity under sub section 1 of Section 79, who complies with sub-Section (2) and (3) of that section. On merits, it is admitted that the complainant had placed an order for Iphone 12 for a sum of Rs.54,999/-, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.
4. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
5. We have heard the complainant in person and learned counsel for the OP and have also gone through the case file as well as written arguments submitted by counsel for the OP very minutely.
6. As per record and admission of the OP, the complainant placed an order for Iphone 12 for Rs.54,999/-. The copy of tax invoice has been proved as Ex.C-2. The complainant’s grievance is that the Flipkart Account of the complainant was blocked and he could not track the order, whereas the OP has alleged that the Flipkart Account of the complainant was blocked on 19.10.2021, but Perusal of the emails and reply to the emails and screen shots of the messages show that the OP was well within the knowledge that the Flipkart Account of the complainant has been blocked and the time was sought to resolve the grievance. Ex.C-6 is the emails consisting of pages (P-1 to P-23). The email dated 05 October, 2021 show that there was a correspondence between the OP and the complainant regarding the deactivation of the Flipkart Account of the complainant. The email dated 08 October, 2021, the screenshot of the messages clearly show that the account was deactivated prior to 19.10.2021 which is contrary to the defence taken by the OP.
7. The OP has further contended that the OP/Flipkart Internet Private Limited is a company engaged, among others, in providing trading/selling facility over the internet through its website www.flipkart.com and mobile application (Mob App). The OP is an online marketplace e-commerce entity as defined under Consumer Protection Act, 2019 and Consumer Protection (E-Commerce) Rules, 2020. The Flipkart Platform' is electronic marketplace model E-commerce platform which acts as an intermediary to facilitate sale transactions between independent third-party sellers and independent end customers. The sellers registered on Flipkart Platform are separate entity being controlled and managed by different-unrelated persons/stakeholders and carry no direct or indirect relationship whatsoever with the Flipkart Platform. The OP falls within the definition of intermediary as defined under Information Technology Act, 2000 and OP is protected by the provisions of Section 79 of the IT Act. But this contention and defence is not tenable as the fact remains that the complainant has made the payment to the Flipkart for onward giving to the seller or manufacturer as the OP was intermediary of the platform provided for both seller and buyer. Flipkart cannot escape/run away from its liability on the ground that there was no privity of contract between the buyer and the seller. It is proved that the entire transaction and correspondence was done through the flipkart online portal i.e. www.flipkart.com. It is proved that the complainant purchased the product through flipkart website, therefore there exist the relationship of a consumer and the service provider between the complainant and the OPs.
8. The OP has sought the exemption under Section 79 of the Information Technology Act. Under Consumer Protection Act, 2019 there are rules regarding the liabilities of marketplace e-commerce entities. These rules have been notified on 23 July 2020 by the Department of Consumer Affairs. It has been mentioned that as per rule 5(1) of the liabilities of marketplace e-commerce entities, a marketplace e-commerce entity which seeks to avail the exemption from the liability under sub-section (1) of Section 79 of the Information Technology Act, 2000 shall comply with sub-sections (2) and (3) of that section, including the provisions of the Information Technology (Intermediary Guidelines) Rules, 2011. It has specifically been mentioned that a marketplace e-commerce entity shall require sellers, through an undertaking, to ensure that descriptions, images and other content pertaining to goods or services on their platform is accurate and corresponds directly with the appearance, nature, quality, purpose and other general features of such good or service. Every marketplace e-commerce entity shall provide the following information in a clear and accessible manner, displayed prominently to its users at the appropriate place on its platform:
(a) details about the sellers offering goods and services, including the name of their business, whether registered or not, their geographic address, customer care number, any rating or other aggregated feedback about such seller, and any other information necessary for enabling consumers to make informed decisions at the pre-purchase stage: Provided that a marketplace e-commerce entity shall, on a request in writing made by a consumer after the purchase of any goods or services on its platform by such consumer, provide him with information regarding the seller from which such consumer has made such purchase, including the principal geographic address of its headquarters and all branches, name and details of its website, its email address and any other information necessary for communication with the seller for effective dispute resolution.
9. There is no document on the record to show that the OP has complied with these rules and has ever assisted the complainant in getting the issue resolved through their seller or manufacturer. As per the record the complainant has booked the order through OP which was accepted by the OP and the payment was received by the OP. All the correspondence was carried on between the OP and the complainant. The complainant has alleged that he received the information that his phone has been delivered, whereas he did not get any OTP. Once the account of the complainant was deactivated from the flipkart, it was not possible to get the OTP. This clearly shows the deficiency in service on the part of the OPs. The email dated 19 October, 2021 show that the order of the complainant was cancelled as their system have detected irregularities in the payment method used for this order and reply to the email was also sent by the complainant, wherein he has sought the refund, if his order has been cancelled. Once, the complainant is getting the message that the ‘item delivered’, how can it be possible that they will send the message that his order has been cancelled. The complainant has again sent an email that his order is not delivered, but he received a delivery confirmation message. This clearly proves the deficiency in service and unfair trade practice on the part of the OP and thus, the complainant is entitled for the relief.
10. In view of the above detailed discussion, the complaint of the complainant is partly allowed. The OP is directed to refund Rs.54,999/- to the complainant. Further, OP is directed to pay a compensation including litigation expenses of Rs.8000/- for causing mental tension and harassment to the complainant. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
11. Copies of the order be sent to the parties, as permissible, under the rules. File be indexed and consigned to the record room.
Dated Jyotsna Dr. Harveen Bhardwaj
18.08.2023 Member President
